Citation Nr: 1334683 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-22 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for thyroid cancer, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for thyroid cancer, to include as due to Agent Orange exposure. In October 2010, the Veteran appeared at a personal hearing at the RO. A transcript of the hearing is in the Veteran's claim file. In December 2012, the Board remanded this appeal for further development. FINDING OF FACT The Veteran's thyroid cancer was not present during service or for many years thereafter, and was not caused by any incident of service including Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for thyroid cancer, to include as due to Agent Orange exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A March 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R § 3.159(b)(1). The March 2009 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA did not provide the Veteran with an examination in connection with his claim for service connection for thyroid cancer, to include as due to Agent Orange exposure. The Board finds, however, that an examination was not necessary to make a decision on that claim. See 38 U.S.C.A. § 5103A (d)(2) (West 2002). An examination or opinion is necessary to make a decision on the claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i) (2008). The Veteran's service treatment records do not show treatment for thyroid cancer or for any thyroid problems. Additionally, there is no indication that the Veteran's claimed thyroid cancer, to include as due to Agent Orange exposure, may be associated with his period of service. As there is no evidence of thyroid cancer in service and no indication that such disorder may be associated with the Veteran's period of service, including any Agent Orange exposure, the facts of this case do not meet the criteria (i.e. prongs (2) and (3) as discussed in McLendon) to warrant a VA examination. See Id. Additionally, in December 2012, the Board remanded this case to obtain private treatment records from Dr. S. Sherman and Dr. S. Scumpia at the MD Cancer Center in Houston, Texas. In December 2012, the Veteran was requested to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for both Dr. Sherman and Dr. Scumpia, so that treatment information could be obtained. However, the Veteran did not respond. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). (Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309(e) Note 3.) For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran contends, essentially, that he has thyroid cancer that is related to service, to include as due to Agent Orange exposure. He specifically maintains that he was exposed to Agent Orange while performing temporary duty (TDY) in Vietnam while serving in the Air Force and that such exposure caused his thyroid cancer. He reports that he served in areas that had recently been sprayed by Agent Orange, as well as in heavily sprayed areas such as Bein Hoa and Da Nang, Vietnam. The Veteran served on active duty from April 1966 to January 1991. His available service personnel records indicate that he served in Vietnam. The Veteran's service treatment records do not show complaints, findings, or diagnoses of thyroid cancer, or any thyroid problems. The first post-service evidence of record of any possible thyroid cancer is in July 2009. A July 2009 VA treatment entry noted, as to active problems, that the Veteran had undergone a thyroidectomy on two occasions for thyroid cancer. The diagnoses referred to other disorders. An April 2011 VA agent orange examination report noted that the Veteran had a history of multiple surgeries for papillary carcinoma of the thyroid. The Veteran reported that he was currently scheduled to have his fourth surgery for removal of further metastatic papillary thyroid carcinoma to the lymph nodes on the left side despite post surgical radiation. It was noted that the Veteran underwent a thyroidectomy in May 2007, as well as additional thyroid cancer surgeries in October 2008 and October 2009. The Veteran reported that he had exposure to Agent Orange while serving in Vietnam during the period from September 1967 to March 1971. He indicated that he served in areas that had recently been sprayed with Agent Orange. He also maintained that he been in the heaviest sprayed areas of Bein Hoa and Da Nang, Vietnam. The Veteran further stated that he ate food and/or drank water that could have been sprayed by Agent Orange. The impression included papillary thyroid carcinoma, status post initial surgery and radiation, followed by three more surgeries for further metastatic lymph node removals. The examiner indicated that the Veteran was presently in preparation for a fourth left neck dissection to removed metastatic nodes. Although exposure to Agent Orange is conceded due to the Veteran's service in Vietnam, his current thyroid cancer (papillary thyroid carcinoma) is not among the diseases listed as presumptively associated with Agent Orange exposure. Thus, the Veteran is not entitled to service connection on a presumptive basis due to Agent Orange exposure. 38 C.F.R. § 3.309(e). The Veteran may, nonetheless, establish service connection if the evidence shows that his current skin cancer was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). The evidence of record does not suggest that the Veteran's thyroid cancer is related to his period of service. In fact, the evidence of record is against this finding, indicating that the Veteran's present thyroid cancer began many years after service, without relationship to service, to include any Agent Orange exposure. Additionally, the record indicates that the Veteran failed to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for both Dr. Sherman and Dr. Scumpia, so that treatment information could be obtained. The duty to assist is not a "one-way street." If a claimant wishes help, he "cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because the Veteran failed to provide the necessary authorizations, the Board must adjudicate the claim based on the evidence of record. The Veteran has asserted in statements and testimony that his thyroid cancer had its onset during his period of service. While the Veteran is competent to report that he had symptoms that he thought were thyroid problems during service, or that he had thyroid problems or thyroid cancer for many years, he is not competent to diagnose his thyroid cancer as related to exposure to Agent Orange. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the claim for entitlement to service connection for thyroid cancer, to include as due to Agent Orange exposure; there is no doubt to be resolved; and service connection for thyroid cancer, to include as due to Agent Orange exposure, is not warranted. ORDER Service connection for thyroid cancer, to include as due to Agent Orange exposure, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs